Senate Bill Would Make Leaks a Felony

Legislation introduced in the Senate this week would broadly criminalize leaks of classified information.  The bill (S. 355) sponsored by Sen. Benjamin Cardin (D-MD) would make it a felony for a government employee or contractor who has authorized access to classified information to disclose such information to an unauthorized person in violation of his or her nondisclosure agreement.

Under existing law, criminal penalties apply only to the unauthorized disclosure of a handful of specified categories of classified information (in non-espionage cases).  These categories include codes, cryptography, communications intelligence, identities of covert agents, and nuclear weapons design information.  The new bill would amend the espionage statutes to extend such penalties to the unauthorized disclosure of any classified information.

(Another pending bill, known as the SHIELD Act, would specifically criminalize disclosure — and publication — of information concerning human intelligence activities and source identities. Both bills were originally introduced at the end of the last Congress, and were reintroduced this month.)

“I am convinced that changes in technology and society, combined with statutory and judicial changes to the law, have rendered some aspects of our espionage laws less effective than they need to be to protect the national security,” said Sen. Cardin.  “I also believe that we need to enhance our ability to prosecute… those who make unauthorized disclosures of classified information.”

“We don’t need an Official State Secrets Act, and we must be careful not to chill protected First Amendment activities,” he said.  “We do, however, need to do a better job of preventing unauthorized disclosures of classified information that can harm the United States, and at the same time we need to ensure that public debates continue to take place on important national security and foreign policy issues.”

The bill would replace the Espionage Act’s use of the term “national defense information” with the broader but more precise term “national security information.”  It would outlaw any knowing violation of an employee’s classified information nondisclosure agreement, “irrespective of whether [the discloser] intended to aid a foreign nation or harm the United States.”  The bill would not criminalize the receipt of leaked information, and it would not apply to whistleblowers who disclose classified information through authorized channels.

But it would establish a rebuttable presumption that any information marked as classified is properly classified.  (The bill does not distinguish between “information” and “records.”)  This means that the government would not have to prove that the leaked information was properly classified;  the defendant would have to prove it was not. In order to mount a defense arguing “improper classification,” a defendant would have to present “clear and convincing evidence” that the original classifier could not have identified or described damage to national security resulting from unauthorized disclosure.  Such challenges to original classification are almost never upheld, and so the defendant’s burden of proof would be nearly impossible to meet.

The bill does not provide for a “public interest” defense, i.e. an argument that any damage to national security was outweighed by a benefit to the nation.  It does not address the issue of overclassification, nor does it admit the possibility of “good” leaks.  Disclosing that the President authorized waterboarding of detainees or that the government conducted unlawful domestic surveillance would be considered legally equivalent to revealing the identities of intelligence sources, the design of secret military technologies or the details of ongoing military operations.

And at a time when an unprecedented number of leak prosecutions are underway, the bill’s premise that an enhanced ability to prosecute leaks is needed seems questionable.  In fact, in a 2002 report to Congress, then-Attorney General John Ashcroft said that the laws already on the books were sufficient and that no new anti-leak legislation was required.

“Given the nature of unauthorized disclosures of classified information that have occurred, however, I conclude that current statutes provide a legal basis to prosecute those who engage in unauthorized disclosures, if they can be identified…. Accordingly, I am not recommending that the Executive Branch focus its attention on pursuing new legislation at this time,” Mr. Ashcroft wrote.

In 2000, Congress enacted legislation to criminalize all leaks of classified information, but the measure was vetoed by President Clinton.

“There is a serious risk that this legislation would tend to have a chilling effect on those who engage in legitimate activities,” President Clinton wrote in his November 4, 2000 veto message.  “A desire to avoid the risk that their good faith choice of words — their exercise of judgment — could become the subject of a criminal referral for prosecution might discourage Government officials from engaging even in appropriate public discussion, press briefings, or other legitimate official activities. Similarly, the legislation may unduly restrain the ability of former Government officials to teach, write, or engage in any activity aimed at building public understanding of complex issues.”

“Incurring such risks is unnecessary and inappropriate in a society built on freedom of expression and the consent of the governed and is particularly inadvisable in a context in which the range of classified materials is so extensive. In such circumstances, this criminal provision would, in my view, create an undue chilling effect,” President Clinton wrote.

No Responses to “Senate Bill Would Make Leaks a Felony”

  1. Duffminster February 17, 2011 at 2:00 PM #

    This is clearly a major attack on transparency and liberty and the citizens ability to counter the ever growing secrecy of the United States and its many covert and illegal actions.

    As usual the American people will simply roll over on this and take it in the rear because they need “security.” If they are so concerned about “security” then why don’t they create a secure job market, or actually secure our major ports, chemical plants and go after the companies that are fragging for gas and may well have polluted much of the US underground water in the aquifers.

    This is all about protecting their lying and secret cover ups.

    They want to be able to look into what books you check out at the library, your internet activity and anything else they want without actual probable cause or a warrant but they don’t want you to know what criminal acts they are committing on a daily basis and they want to silence the Whistle Blowers.

    Bing Duffminster

  2. the Lion February 18, 2011 at 3:04 AM #

    Well this should make it easier to get rid of Senators, members of the House and Members of the Whitehouse staff, because they leak like sieves.

  3. Fred54 February 18, 2011 at 8:41 AM #

    Keep it up guys. America will get to our “Cairo” moment even quicker
    than on our current trajectory.

  4. dustime8 February 18, 2011 at 2:36 PM #

    Bings correct about the American citizen roll over. We are now the number one complacent country on the planet. undercaring and overweight with no concern of anything but the weekly check and having fun. People who opt for being controlled as it takes less thought of self care.
    I myself have been politically blacklisted for speaking out against illegal immigration and naturally branded a racist at 80 years.
    Secret governments are not democracies.

  5. Orwell February 18, 2011 at 8:04 PM #

    One can easily see what direction this is all goosestepping too…

  6. Nym February 19, 2011 at 1:00 AM #

    This is a terrible idea. There is already a wretched problem with wanton & profligate over-classification of material. So much so that government ends up doing useless work, silos information to the point where information ends up lost, and organizations end up crippling themselves. Over-classification is a far worse, and far more damaging problem than any caused by some perceived inadequacy in laws regulating dissemination of information. How far along is the declassification of the remaining 70 out of 80 million documents in the latest batch the government is supposed to be releasing? I’d bet not very far at all. This wrong headed idea for new laws is only going to make that situation far worse. It’s obvious too that the Senators have not considered any of the implications of what they’re doing beyond narrow goals brought about by foolish unintelligent panic over Wikileaks.

    I would bet anyone serious money that were this law to pass that the people who ended up most prosecuted will be legislators and their staff members.

  7. Bong February 23, 2011 at 5:17 AM #

    Let’s consider the phrase “national security information” for a moment, which is what the proposed Bill will encompass.

    If an American citizen learned about the upcoming corn crop report and placed it on Wikileaks (which is the Bill is reacting to), he/she would have committed a national security felony under this Bill (regardless of how the SEC would view it).

    Or, if the same person placed information on Wikileaks about how the Calif. Highway Patrol is changing their colors so it can blend in better with vehicular traffic, that type of information also could be considered national security information, because it describes a change in security tactics.

    Or, if the same person at the end of runway took a photograph of Air Force One as it departed Andrews AFB and posted it on Wikileaks, that also could be considered a breach of national security.

    I understand the motivation behind this bill but it is too broad of a “net” to place upon US citizens; because the First Amendment right to Free Speech will be hindered. American citizens will have to be careful about what they generally say in public, how they describe an event, and where an event will take place.

    While the Bill has merit in concept, it needs critical analysis, national discussion, clearer descriptions of what information truly would be a national security risk (we can improve upon the current laws without this new Bill), and it needs to also be scrutinized as to whether it is another veiled attempt to turn the American public into “narcs” much like the North Koreans do against their fellow citizens.

    For simplicity, in theory, if this Bill passed as is, all Americans who speak about a government activitiy, regardless if it’s benign or not will become an enemy of the state.

  8. Dr. Skip February 28, 2011 at 1:33 PM #

    Well…..people we better start looking out….the 1st Amendment, is under full attack based on this proposed bill. As one poster has remarked…..ANY speak about the Govt. is grounds for the speaker to be labled as an [Enemy of the State] and will be treated as such. It’s starting to take on a special feel…and a special smell…Like the way Russia, was, yesterday, is today and will be in the future. Remember these words…”I’ll change America” and well he is REALLY trying, with the help of all those who think the same as he does!

  9. Need-to-know February 28, 2011 at 3:42 PM #

    This bill can have positive impacts and can help protect our service men and women. This bill is targeted at military personnel and government contractors that agree and sign a Non-Disclosure agreement. This agreement says that in exchange to complete your required work you can be exposed to classified material. With this goes the responsibility of only disclosing this information to other individuals with the same clearance and a need-to-know. It does not produce cover ups as conspiracy theorist would like you to think.

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  1. Sen. Benjamin Cardin's impressive feat - Salon.com - May 27, 2011

    [...] in the United States in the last several decades at least.  In particular, his bill, as Steven Aftergood of the Federation of American Scientists explained, “would broadly criminalize leaks of classified information” and would, in effect, turn [...]